Višje sodišče v Ljubljani
National case details
Registration ID: I Cpg 664/2017
Instance: Appellate on fact and law
Case status: Final
Area of law
Relevant principles applied
In judicial dialogueJudgement of the CJEU (First Chamber), 4 June 2015, Case C-C-497/13 Froukje Faber v. Autobedrijf Hazet Ochten BV
Not publicly available
Decision of the court of 1st instance
20 July 2017
Decision of Ljubljana Higher Court (I Cpg 664/2017)
Identification of the case
- Obligations code (art. 155, 155/1, 299, 299/1, 378, 378/1) Consumer Protection Act (art. 4, 5, 6, 7, 8, 9, 10, 11, 11a) Constitution of the Republic of Slovenia (art. 22) Civil Procedure Act (149, 224, 224/1, 318, 318/1, 318/1-4, 351, 351/1, 358, 358/-5
- Regulation (EC) no. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regula
Summary of the case
- French client “C” ordered manufacture of the mold for the deck of the vessel to the plaintiff. The plaintiff ordered manufacture of the mold to the first defendant.
- The second defendant (legal entity with registered office in Italy) delivered goods to the first defendant who was manufacturing the mold for the deck of the vessel.
- The plaintiff lodged a tort action against the second defendant claiming that defect on the product (on the mold produced by the first defendant) is the result of defective material delivered by the second defendant.
- The action was served to the second defendant in line with Regulation no. 1393/2007.
- The second defendant has failed to file a defense plea. Therefore, the court of first instance rendered a judgment satisfying the claim (default judgment). The court of first instance justified its decision with referral to paragraph 1, article 155 of Obligations Code (liability of manufacturer of faulty object) which states that:” A person that markets any object manufactured by the person that entails a risk of damage to people or property for reason of any type of fault shall be liable for the damage occurring because of such fault.”
- The court further assessed that unlawful conduct of the second defendant exist in delivering defective material that was then used by the first defendant to manufacture the final product (the mold). The court concluded the damage was caused to the plaintiff precisely because of manufacturing the product from inadequate/defective material, delivered by the second defendant.
- The second defendant lodged an appeal against the default judgment claiming: i) that the action was not properly served, ii) violation of the right to be heard and iii) that the action is not conclusive (sklepčnost tožbe) – the facts stated in the action do not found the claim to a sufficient extent.
- Ljubljana Higher Court granted the appeal and modified the judgment, namely the court of second instance dismissed the claim against the second defendant in whole.
- Civil judicial enforcement
The plaintiff (legal entity with registered office in Slovenia) lodged a tort action for damages caused by defective products against two defendants. The second defendant (who also lodged the appeal) was legal entity with registered seat in Italy. The plaintiff claimed compensation in the amount of 411.943,53 EUR.
Reasoning regarding service of process
The court decided that the action was served to the second defendant in line with Regulation no. 1393/2007, in particular with the article 14. Further, the court gave reasons how to interpret part of the wording from article 14 of the Regulation, namely “acknowledgement of receipt or equivalent.” The court stated it should be interpreted in line with EU law and further stressed that Slovenian translation of article 14 of the Regulation is not correct as the Slovenian translation uses the word proof of service (vročilnica) instead acknowledgement of receipt (povratnica). The court concluded that service of an action to the defendant is proven by acknowledgement of receipt (povratnica), which in the present case was in the judicial record. According to article 224, paragraph 1 of Slovenian Civil Procedure Act the acknowledgement of receipt is considered as authentic instrument. The second defendant did not manage to prove that service was not preformed properly. Last but not the least the court gave reasons why article 22 of Slovenian Constitution does not apply. Namely the second defendant claimed that service in the present case represented inadmissible discrimination which does not comply with article 22 of Slovenian Constitution (equal protection of rights). The court explained the assessment of discrimination in performing the service under article 22 of the Slovenian Constitution is not possible because the legal basis for the Regulation no. 1393/2007 is not in Slovenian law. Even though the Regulation no. 1393/2007 applies in Slovenia, it is still not a Slovenian law.
Reasoning regarding defendant`s liability
The manufacturer's liability for defective products in Slovenia is provided in article 155 of the Obligations Code and in articles 4 to 11a of the Consumer Protection Act. However, the provisions of the Consumer Protection Act do not apply only to consumers as injured parties but to each injured party regardless the consumer status (article 11a Consumer Protection Act; please see the wording below). Placement of this provisions in the law governing consumer protection is therefore misleading regarding the possible beneficiaries of these claims.
Consumer Protection Act attempted to implement the content of Directive 85/374/EEC into Slovenian law. It is obvious from the ECJ case law that the purpose of Directive no. 85/374/EEC is to achieve maximum harmonization of the manufacturer's liability provisions for the defect. Derogations in favour of the injured person and to the detriment of the producer constitute a breach of the Directive, unless the Directive itself allows for a derogation. Any possible deviations for the benefit of the producer would therefore constitute a breach of the Directive, unless the directive itself allows for a deviation.
The principle of EU-loyal interpretation requires the court to interpret national law in the context of admissible interpretative rules by applying national law in accordance with EU-secondary law. In case under analysis, the Ljubljana Higher Court did so, and therefore waived paragraph 1 of article 155 of the Obligations Code. The court assessed merits of the application on the basis of Article 4 et seq. of Consumer Protection Act that are in line with provisions of Directive no. 85/374/EEC. The Court concluded that liability of the second defendant based on article 4 et seq. ZVPot is not given.
 Please see below »Other notes on the decision« for wording of this articles.
Role of the Charter and role of the general principles on enforcement
In line with EU law (especially Faber case no. C‑497/13) principle of effectiveness requires a national court before which a dispute relating to a contract has been brought to determine whether the purchaser may be classified as a consumer, even if the purchaser has not expressly claimed to have that status. In the present case the court similarly assessed that the second defendant should be considered as the producer/manufacturer in line with Consumer Protection Act and Directive although the plaintiff has not expressly claimed this.
Elements of judicial dialogue
- Dialogue among same level national courts within the same Member State
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- Dialogue between high court - lower instance court at national level
- CJEU C-183/00 María Victoria González Sánchez v Medicina Asturiana SA
- CJEU C-310/13 Nordisk Pharma GmbH, CJEU C-127/04
- Declan O'Byrne v Sanofi Pasteur MSD Ltd and Sanofi Pasteur SA
Conform interpretation with EU law as interpreted by the CJEU.
Citation of foreign domestic judgment
The judicial dialogue was used as an instrument to justify the higher court decision to reverse the decision of the court of the 1st instance (especially when explaining why the Court of first instance did not apply the correct substantive law to decide on the matter).
As the court concluded placement of provisions that implement Directive no. 85/374 EEC in the Slovenian Consumer Protection Act is misleading regarding the possible beneficiaries of these claims, possible effect of judicial dialogue might be the replacement of those provisions into another act.
Additional notes on the decision
Slovenian Consumer Protection Act (unofficial translation)
In line with the general rules on liability for damage and the rule on the liability of the producer of defective goods, the producer shall be obligated to make recompense for damage caused when a defect in the product causes death, bodily injury, damage to the health of a person, or if damage to another object was caused due to the defect on the product.
The producer shall be obligated to make recompense for damage caused to other objects only if the damaged object is normally intended for personal use and the injured party had used it chiefly for personal use, whereby the injured party participation to make recompense for the damage is 500,00 EUR.
If the producer or importer of a product cannot be determined, then every supplier of the product shall be considered its producer, unless the supplier informs the damaged party within a reasonable period of time of the identity of the producer or the importer or of the person the supplier obtained the product from.
Within the meaning of this chapter, a product shall be considered to be any movable object even if that object is only a part of another movable object or if it is connected to an immovable object, including electrical energy.
A product shall be considered defective when it is not as safe as the consumer justifiably expects it to be. In determining what sort of safety the consumer is entitled to expect, the following shall be particularly taken into consideration:
1. the presentation of the product with regard to its intended use,
2. the predicted use of the product in a reasonable manner, and
3. the time when the product was placed on the market.
A product shall not be considered defective solely if a product of better quality subsequently appears on the market.
The injured party shall be obliged to prove the defect and damage.
A product is placed on the market the moment the producer makes it available for use or dispatches it, irrespective of its legal title.
The producer shall be liable for damage caused by a defective product if the damage occurs ten years from the day the product was placed on the market.
The producer shall not be liable for damage if it proves that:
- it did not place the product on the market;
- the circumstances indicate that the defect which caused the damage did not exist when the product was placed on the market;
- the defect is a result of the compulsory regulations with which the product must comply;
- it only produced a component part or ingredient of the product or obtained the basic or additional raw material or additive, and that the defect occurred due to the construction or making of the product of which the component was a built-in part or for which the basic or additional raw material or the additive was used, or that the defect occurred due to the instructions provided by the producer of this product;
- due to the level of scientific and technical knowledge in the world during the time the product was placed on the market, it was not possible to detect the defect in the product (i.e. by established methods and analyses);
- it did not manufacture the product for the purpose of sale or any other form of distribution for economic purposes and did not manufacture or place the product for sale within the scope of its registered activities.
The liability for damage referred to in this chapter may not be limited or excluded by a contract.
The rights from this chapter shall also belong to individuals who are not consumers, according to this Act.
Slovenian Obligations Code (unofficial translation)
III. LIABILITY OF MANUFACTURER OF FAULTY OBJECT
(1) A person that markets any object manufactured by the person that entails a risk of damage to people or property for reason of any type of fault shall be liable for the damage occurring because of such fault.
(2) Any manufacturer that has failed to do everything necessary to prevent any damage that could be foreseen through a warning, safe packaging or any other appropriate measure shall also be liable for the dangerous attributes of an object.